Allen Bloodworth, II v. Kansas City Board of Police Commissioners ( 2023 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-3540
___________________________
Allen T. Bloodworth, II
lllllllllllllllllllllPlaintiff - Appellant
v.
Kansas City Board of Police Commissioners, through its members,
doing business as Kansas City Police Department; Mayor Quinton
Donald Lucas; Don Wagner; Mark Tolbert; Cathy Dean; Dawn Cramer
Scott Caron; Jeffrey O'Rear; Christopher Millsap; Lisa Allender;
Brad Lemon; Toby Sicks; Carter Truax; Jonathan Munyan;
Nathaniel Hurley; Chad Rives
lllllllllllllllllllllDefendants - Appellees
Police Chief Richard Smith; James Trout; Michael Hicks; Darrin Wilson
lllllllllllllllllllllDefendants
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: September 20, 2023
Filed: December 22, 2023
____________
Before LOKEN, WOLLMAN, and BENTON, Circuit Judges.
___________
LOKEN, Circuit Judge.
Allen Thomas Bloodworth, II operates two towing businesses in Kansas City.
One tows vehicles from privately owned properties, the other does commercial
repossessions. In this action, commenced in May 2021 in Missouri state court,
Bloodworth alleges that the Kansas City Board of Police Commissioners, acting
through its five Members (“the Board”), and fourteen officers of the Kansas City
Police Department (“KCPD”) acted together to stop Bloodworth from running his
businesses and shut down his ability to conduct business in Kansas City.
After Defendants removed and the district court consolidated separate cases,
Bloodworth filed an Amended Complaint in October 2021, asserting seventeen state
and federal claims: state law claims against all Defendants for defamation, tortious
interference with contract, tortious interference with business expectancy, intentional
infliction of emotional distress, and negligent hiring, training, supervision, or
retention (Counts I, II, III, XV, and XVI); an additional state law claim against
Sergeant Brad Lemon (Count XIV); federal claims under 42 U.S.C. § 1983 against
KCPD officers for an unlawful warrant search and seizure of Bloodworth’s residence
and business, unlawful seizure by shooting his dog while executing the warrant, and
unlawful seizure of business records during the search (Counts IV, V, and VI); claims
against specific officers for failure to supervise or intervene, resulting in violations
of the Fourth and Fourteenth Amendments (Counts VII, VIII, and IX); claims of
§ 1983 municipal liability against the Board and its Members for official policies,
unlawful practice or custom, failure to train, and failure to supervise and discipline,
resulting in violations of Bloodworth’s constitutional rights (Counts X, XI, XII, and
XIII); and a § 1983 claim for intentional acts against Bloodworth and his businesses
that violated his constitutional rights (Count XVII).
In April 2022, the district court granted in part Defendants’ motion for partial
summary judgment on the pleadings, dismissing four officer defendants because the
-2-
Amended Complaint “fails to allege any concrete action on their part that connects
to Plaintiff’s various theories of liability,” and granting judgment on the pleadings as
to Counts IV, V, VI, VII, VIII, and IX “to the extent any of these claims purports to
assert official capacity claims.” Bloodworth has appealed only the final order
dismissing the remaining claims. Therefore, this earlier order is law of the case not
subject to appellate review. See Parkhill v. Minn. Mut. Life Ins. Co., 286 F.3d 1051,
1058 (8th Cir. 2002); Fed. R. App. P. 3(c)(1)(B).
In May 2022, the district court granted a motion for partial summary judgment
dismissing the Board and its Members from Bloodworth’s state law claims in Counts
I, II, III, XV, and XVI as barred by sovereign immunity. Ambiguous arguments in
Bloodworth’s briefs appear to challenge the district court’s ruling that the Board and
its Members are entitled to sovereign immunity. But he did not designate this as an
order from which the appeal is taken. Therefore, the order and its reasoning are law
of the case not subject to our appellate review.
On August 1, 2022, the remaining Defendants other than Sergeant Lemon filed
a motion for summary judgment on all remaining claims, and Lemon filed a separate
summary judgment motion. After extensive briefing, the district court1 granted both
motions. Bloodworth v. Kan. City Bd. of Police Comm’rs, No. 21-00194-CV-W, 21-
00488-CV-W, 2022 WL 17588490 (W.D. Mo. Nov. 15, 2022). Bloodworth appeals
this final order, presenting a single issue for our review:
Did the District Court err in granting Summary Judgment to the
Defendants because there was a genuine issue of material fact with
respect to each of the Plaintiff’s claims against the Defendants in that
the evidence adduced by the Plaintiff established that the Defendants,
while acting as police officers and ultra vires, undertook a campaign to
1
The Honorable Beth Phillips, Chief Judge of the United States District Court
for the Western District of Missouri.
-3-
harass the Plaintiff, violate his civil rights and harm his business by
alienating his customers?
That issue is all we need consider. See Fed. R. App. P. 28(a)(5). “We review the
district court’s grant of summary judgment de novo, viewing the record in the light
most favorable to the nonmoving party.” Buschmann v. Kan. City Bd. of Police
Comm’rs through Dean, 76 F.4th 1081, 1084 (8th Cir. 2023). When the nonmoving
party bears the burden of proof, as in this case, a party moving for summary judgment
“may discharge its burden by ‘pointing out to the district court . . . that there is an
absence of evidence to support the nonmoving party’s case.’” Washington v. City of
St. Louis, 84 F.4th 770, 773 (8th Cir. 2023), quoting Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986). Concluding there was no error, we affirm.
I. Background
KCPD has investigated Bloodworth’s towing businesses since early 2016,
when Officer Chad Rives, a detective with the Property Crimes Division, conducted
a stolen auto investigation and a warrant search of Bloodworth’s lot recovered a
stolen vehicle. In late 2016 or early 2017, the KCPD Records Unit noticed that many
of Bloodworth’s Form 4669s -- a form towing companies are required to submit when
towing a vehicle from private property -- were signed by the same person, John
Speakman. Investigation revealed that Speakman initially authorized several tows
but did not authorize later tows. When KCPD put stop orders on Bloodworth’s
drivers so they could be questioned, Speakman’s name stopped appearing on Form
4669s. In October 2018, KCPD submitted 31 counts of forgery to the Jackson
County Prosecutor’s Office.
In March 2019, a Missouri state court judge issued a warrant to search
Bloodworth’s tow lot and seize “[a] red 1995 Ford Ranger pickup,” a stolen vehicle;
“[a]ny vehicles verified as reported stolen autos;” and “[a]ny documents regarding the
-4-
towing of verified stolen autos.” Tactical teams including Officers Truax, Sicks,
Munyan, and Hurley executed the warrant on March 27, accompanied by personnel
from the City’s Neighborhoods & Housing Services Department (referred to as “City
Codes”) and the Missouri State Highway Patrol. Bloodworth maintains a residence
and stores towed cars on the lot.
After yelling “police” and entering the lot, the officers encountered Bloodworth
and another individual outside the residence and handcuffed both. Five officers
proceeded to the residence. After knocking and waiting four seconds, they forced the
door open with a ram. While Officers Munyan and Miller (not a defendant) were
clearing a room, covered by Officers Sicks and Truax, Bloodworth’s large pitbull mix
dog emerged from the kitchen and walked toward the officers, exhibiting signs of
aggression. Sicks yelled “back back back.” The dog paused then took a step forward;
Sicks and Truax fired shots at the dog, killing it. The officers then completed
clearing the residence and swept the property. Bloodworth’s business records were
seized, apparently by City Codes personnel, and KCPD recovered sixteen stolen
vehicles, including the Ford Ranger pickup.
In June 2019, KCPD Sergeant Brad Lemon called Bloodworth and demanded
the release of a towed vehicle that Lemon claimed belonged to a family member.
Lemon identified himself as law enforcement and the police union president. When
Bloodworth refused to release the car without authorization from its registered owner,
Lemon referenced the investigation of Bloodworth’s businesses and said, “it’s game
on” and “we’ll start the same routine with you then.” The recorded call was
publicized in local media. In September 2019, the Jackson County Prosecutor
charged Bloodworth with 31 counts of forgery. In December 2020, the prosecutor
dismissed the charges due to Lemon’s phone call.
-5-
II. The State Law Claims
The district court’s May 2022 order held that Bloodworth’s state law claims in
Counts I, II, III, XV, and XVI against the Board and its Members are barred by
sovereign immunity. In the final order being appealed, the court addressed the
individual state law claims against Sergeant Lemon and the other KCPD officer
defendants. The court dismissed these claims against the other officers as barred by
state law official immunity and alternatively on the merits. It dismissed the state law
claims against Sergeant Lemon on the merits.
A. The Non-Lemon Officer Defendants. “[P]ublic officers acting within the
scope of their authority are not liable for injuries arising from their discretionary acts
or omissions.” State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 444 (Mo. banc
1986) (quotation omitted). However, this “official immunity does not aply to
discretionary acts done in bad faith or with malice.” Davis v. White, 794 F.3d 1008,
1013 (8th Cir. 2015) (quotation omitted). In opposing summary judgment,
Bloodworth argued these Defendants “are not entitled to official immunity because
they were acting ultra vires, or beyond their lawful authority,” and their actions “were
conducted with malice or in bad faith.” The district court disagreed:
According to the Amended Complaint, all Defendants, at all relevant
times, were acting under color of law and on behalf, or under the
authority, of the Board. Further, most conduct involves standard police
activities. For example . . . investigations of potential criminal activity,
such as a failure to follow proper procedures when towing vehicles,
misuse of someone’s signature, and the whereabouts of vehicles that
were reported stolen. They also spoke to potential witnesses and
executed a search warrant . . . typical law enforcement activities. . . .
Plaintiff’s contention that the KCPD investigated his business based on
improper motives . . . is unavailing. Again, the KCPD was investigating
purported criminal conduct. Plaintiff denies wrongdoing, but some
-6-
evidence of questionable activity exists. . . . If plaintiff was engaging in
illicit conduct, attempting to prevent such activity was a reasonable
response. The Officers had a legitimate belief there were issues with the
local towing industry and firmly believed Plaintiff was failing to follow
the law. . . . The Officers were acting within the scope of their law
enforcement duties, and they were not acting with malice or in bad faith.
Bloodworth, 2022 WL 17588490, at *5. Regarding Bloodworth’s claims in Counts
II and III that defendants tortiously interfered with his contract and business
expectancies, the court explained:
Plaintiff . . . provides no evidence of any specific statement of any
named defendant to Plaintiff’s customers. . . . If Plaintiff is relying on
the investigation into his business to support this claim, the Court has
found that the Officers engaged in a legitimate investigation into
potential illegal activity. Such conduct cannot comprise the basis of a
tortious interference claim. Further, Plaintiff has failed to demonstrate
damages attributable to the Officers’ conduct.
Bloodworth, 2022 WL 17588490, at *6.
On appeal, Bloodworth argues the district court erred in granting these
Defendants official immunity on all state law claims because they “were acting
outside the scope of their employment as Police Officers” as defined in § 84.420(1)
of the Revised Statutes of Missouri. “There is no conceivable law enforcement
purpose for” Defendants’ intentional attempts to “harass[] and persecute[] Mr.
Bloodworth,” try to shut down his business, and “harass[] and intimidate[]
Bloodworth’s customers so that his business would be harmed.” He asserts that
“Defendants’ actions were not related to any laws or the enforcement of any laws or
the investigation of any crime.” As the above-quoted portion of the district court’s
opinion makes clear, the record belies these contentions. The investigation was based
on the improper filing of forms required by law and reports of stolen cars, some of
-7-
which were recovered from Bloodworth’s property. This resulted in the filing of
criminal charges that were ultimately dismissed voluntarily by the prosecutor as a
result of Defendant Lemon’s improper call. These actions were clearly within the
scope of Defendants’ responsibilities as police officers. For the reasons stated by the
district court, these Defendants were entitled to official immunity and the grant of
summary judgment dismissing Bloodworth’s state law claims against these
defendants is affirmed. Cf. Wealot v. Brooks, 865 F.3d 1119, 1129 (8th Cir. 2017).2
B. Sergeant Lemon: In his motion for summary judgment, Sergeant Lemon
did not argue that Bloodworth’s state law claims are barred by official immunity. The
district court granted summary judgment dismissing these claims on the merits.
1. Defamation (Count I). Bloodworth claims that Sergeant Lemon made
false, defamatory statements in his June 2019 phone call to Bloodworth seeking
release of a towed vehicle. To prevail on this claim, Bloodworth must prove “1)
publication, 2) of a defamatory statement, 3) that identifies the plaintiff, 4) that is
false, 5) that is published with the requisite degree of fault, and 6) damages the
plaintiff’s reputation.” Smith v. Humane Soc’y of the U.S., 519 S.W.3d 789, 798
(Mo. banc 2017) (quotation omitted). The district court granted summary judgment
dismissing this claim because, while the allegedly defamatory statements were aired
on local news, they were not published by Lemon. Bloodworth, 2022 WL 17588490,
at *10.
2
Bloodworth also argues that Defendants violated his federal constitutional
rights by telling his customers not to do business with him. The argument is based
on the same facts as his tortious interference state law claims and fails for the same
reasons. He has not established any deprivation of the alleged property interest.
-8-
On appeal, Bloodworth argues the district court erred because, viewed in the
light most favorable to the plaintiff, the evidence established that there is a genuine
issue of material fact. We disagree. “Communication of defamatory matter only to
the plaintiff who then discloses to third parties ordinarily does not subject defendant
to liability,” unless the defendant “intends, or has reason to suppose, that in the
ordinary course of events the matter will come to the knowledge of some third
person.” Overcast v. Billings Mut. Ins. Co., 11 S.W.3d 62, 70 (Mo. banc 2000)
(quotation omitted). Bloodworth cites no evidence in the summary judgment record
tending to show that Lemon either published the statements himself, or “intend[ed],
or ha[d] reason to suppose” they would be communicated to any third party. There
was no error.
2. Tortious Interference with Contract and Business Expectancy (Counts
II and III). Bloodworth claims that statements in Sergeant Lemon’s June 2019
phone call -- “it’s on then” and “we’ll start the same routine with you then” --
tortiously interfered with Bloodworth’s contract and business expectancies because
they demonstrate Lemon was responsible for the forgery charges filed three months
later. The district court concluded Bloodworth had not stated a viable claim because
“he provides no evidence that Lemon played a role in the initiation of the forgery
charges [and] has not identified any specific contracts or business expectancies that
were harmed.” Bloodworth, 2022 WL 17588490, at *10.
On appeal, Bloodworth argues the district court erred because a jury could infer
tortious interference from the fact that “31 baseless counts of forgery” were filed
three months later. But he points to no specific evidence establishing the elements
of these claims against this defendant -- “(1) a contract or valid business expectancy;
(2) defendant’s knowledge of the contract or relationship; (3) a breach induced or
caused by defendant’s intentional interference; (4) absence of justification; and (5)
damages.” Bishop & Assoc., LLC v. Ameren Corp., 520 S.W.3d 463, 472 (Mo. banc
2017) (quotation omitted). There was no error.
-9-
3. Assault (Count XIV). Bloodworth claims that Lemon committed assault
when he threatened Bloodworth during the phone call by saying that “the same
routine” (an investigation), “it’s on.” “Assault is any unlawful offer or attempt to
injure another with the apparent present ability to effectuate the attempt under
circumstances creating a fear of imminent peril.” Devitre v. Orthopedic Ctr. of St.
Louis, LLC, 349 S.W.3d 327, 335 (Mo. banc 2011) (quotation omitted). The district
court granted summary judgment on this claim because “assault requires a connection
to bodily harm or offensive contact. Plaintiff’s allegations cannot support an assault
claim.” Bloodworth, 2022 WL 17588490, at *11.
On appeal, Bloodworth argues the district court erred because assault includes
an “offer or attempt to injure” and “the call demonstrates that Lemon offered to injure
Bloodworth.” We disagree. “To plead an assault, [Bloodworth] must allege: (1)
defendant’s intent to cause bodily harm or offensive contact, or apprehension of
either; (2) conduct of the defendant indicating such intent, and (3) apprehension of
bodily harm or offensive contact.” Devitre, 349 S.W.3d at 335. Lemon’s statements,
made in a phone call, did not evidence intent to cause bodily harm or offensive
contact, and Bloodworth points to no evidence in the summary judgment record
supporting a claim that they “creat[ed] a fear of imminent peril.” There was no error.
4. Intentional Infliction of Emotional Distress (Count XV). Bloodworth
claims that Sergeant Lemon intentionally inflicted emotional distress (“IIED”) when
he identified his law enforcement position in the phone call, asked Bloodworth to
engage in illegal activity by releasing a vehicle without the owner’s authorization,
and then threatened further police action and investigation when Bloodworth refused.
The district court granted summary judgment because Lemon’s actions, while “ill-
advised and questionable . . . were not ‘so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.’” Bloodworth, 2022 WL
17588490, at *11, quoting Gibson v. Brewer, 952 S.W.2d 239, 249 (Mo. banc 1997).
-10-
On appeal, Bloodworth argues the district court erred because a reasonable jury
could conclude that Lemon’s conduct was extreme and outrageous. Like the district
court, we disagree. “Missouri case law reveals very few factual scenarios sufficient
to support a claim for IIED.” Bailey v. Bayer CropScience L.P., 563 F.3d 302, 310
(8th Cir. 2009) (citations omitted), a case in which we affirmed the grant of summary
judgment dismissing an IIED claim. “[T]he plaintiff must plead extreme and
outrageous conduct by a defendant who intentionally or recklessly causes severe
emotional distress that results in bodily harm.” K.G. v. R.T.R., 918 S.W.2d 795, 799
(Mo. banc 1996) (citations omitted). The claim “will not lie where the alleged
conduct is intended to invade other legally protected interests.” Id. This “relative
newcomer to the common law . . . was intended to supplement existing forms of
recovery, not swallow them.” Id. Bloodworth points to no specific evidence in the
summary judgment record that meets these rigorous criteria. There was no error.
III. The Federal Law Claims
The district court divided Bloodworth’s federal law claims into three
categories, those relating to conduct of individual KCPD officers, claims of failure
to intervene or supervise, and municipal liability claims. The court granted summary
judgment dismissing these claims, agreeing with Defendants that “there is an absence
of evidence to support the nonmoving party’s case.” Washington, 84 F.4th at 773
(quotation omitted).
A. Individual Officer Conduct Claims (Counts IV, V, VI, and XVII). These
§ 1983 claims allege Fourth Amendment violations against specific KCPD officer
defendants arising out of the warrant search on March 27, 2019 (Count IV), the
seizure (killing) of Bloodworth’s dog (Count V), the seizure of his business records
(Count VI), and “intentional acts against Plaintiff and his businesses” (Count XVII).
In granting officers other than Lemon summary judgment dismissing these Fourth
Amendment claims, the district court held they were entitled to qualified immunity.
-11-
Qualified immunity insulates government officials from liability “unless (1) the
evidence, viewed in the light most favorable to [Bloodworth], establishes a violation
of a constitutional or statutory right, and (2) the right was clearly established at the
time of the violation, such that a reasonable official would have known that his
actions were unlawful.” Ackerman v. State of Iowa, 19 F.4th 1045, 1058 (8th Cir.
2021) (quotation omitted). A federal court may exercise discretion in determining
which prong of the qualified immunity analysis to address first. Ryno v. City of
Waynesville, 58 F.4th 995, 1005 (8th Cir. 2023).
The district court noted that the claims regarding interfering with Bloodworth’s
business, Defendants’ conduct during the search, and the seizure of business records
are “general assertions, largely without referencing any individual defendant’s
specific conduct. . . . Thus, a constitutional violation has not been established.”
Bloodworth, 2022 WL 17588490, at *8. This was clearly correct. We have
repeatedly emphasized that “[t]he doctrine of qualified immunity requires an
individualized analysis of each officer’s alleged conduct.” S.M. v. Krigbaum, 808
F.3d 335, 340 (8th Cir. 2015) (emphasis in original; quotation omitted); see Ashcroft
v. Iqbal, 556 U.S. 662, 677 (2009) (a government official is “only liable for his or her
own misconduct.”). In their scatter-gun briefs, counsel for Bloodworth repeatedly
assert that Bloodworth presented sufficient evidence that “Defendants” violated his
rights to avoid summary judgment. This will not do. There are 17 separate claims
and 14 individual defendants. “Judges are not like pigs, hunting for truffles buried
in briefs.” Brown v. City of Jacksonville, 711 F.3d 883, 888 n.5 (8th Cir. 2013),
quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). We summarily
affirm every § 1983 claim against a defendant whose conduct was not specifically
linked to that particular alleged violation.
On appeal, Bloodworth argues the summary judgment record supports two
violations of his clearly established Fourth Amendment rights: (1) the “years-long
campaign against” Bloodworth and his businesses, which “depriv[ed] him of his
-12-
property interest in his business,” and (2) Defendants’ use of excessive force and their
unreasonable search and seizure of his property.
1. Alleged Campaign Against Bloodworth’s Businesses. In addition to
rejecting this claim because Bloodworth did not reference any Defendant’s specific
conduct, the district court concluded that Bloodworth’s general assertions are
unconvincing. “[T]he KCPD investigated Plaintiff regarding alleged criminal
activity; it was not simply trying to shut down Plaintiff’s business due to improper
motivations.” Bloodworth, 2022 WL 17588490, at *8. We agree. On appeal,
Bloodworth points to a statement by an individual Defendant referring to his
“problem business” and to deposition testimony referring to “the propensity for the
continuous criminal enterprise part of [the business].” But such statements confirm
that alleged criminal activity brought to KCPD’s attention, not personal animus,
motivated the investigation. A licensed business that does not conform to its
licensing obligations and refuses demands that it come into compliance at some point
faces license revocation (being shut down).
2. Excessive Force and Unreasonable Search and Seizure of Property.
Bloodworth argues that Defendants violated his Fourth Amendment rights on March
27, 2019, by: (a) failing to knock and announce before breaking into his residence,
(b) handcuffing Plaintiff, (c) shooting and killing his dog, and (d) taking business
records.3 To the extent that Bloodworth identified specific conduct of individual
defendants, the district court found these arguments unpersuasive.
(a) The Fourth Amendment usually requires police officers to knock and
announce their presence before executing a warrant to search a dwelling. See Wilson
v. Arkansas, 514 U.S. 927, 936 (1995). Here, the KCPD tactical teams yelled
3
The warrant explicitly authorized search for and seizure of “[a]ny documents
regarding the towing of verified stolen vehicles.”
-13-
“police” before entering the tow lot property, detained Bloodworth and his employee
outside the residence, reached the door of the residence some 30 seconds after
entering the property, knocked and announced, and broke into the residence only four
seconds later. Bloodworth argues this violated the Fourth Amendment because
Defendants Sicks and Truax testified that KCPD policy requires officers to wait 15
seconds before forcefully entering a home. The district court disagreed, noting the
Fourth Amendment reasonableness inquiry is flexible and Bloodworth “offers no
explanation as to why the knock and announce was unreasonable here.” Bloodworth,
2022 WL 17588490, at *8. Bloodworth’s briefs on appeal do not provide the needed
explanation. Moreover, it is well-established “that police department guidelines and
policies do not create rights that give rise to a § 1983 action.” Christiansen v. Eral,
52 F.4th 377, 379 (8th Cir. 2022) (citation omitted).
(b) Bloodworth argues that Defendants subjected him to an unreasonable
search and seizure that violated his Fourth Amendment rights when they handcuffed
him in the tow lot and broke into a residence that was not described in the warrant.
These contentions are without merit. As the district court explained, “officers are
allowed to detain individuals present on a property being searched,” citing Muehler
v. Mena, 544 U.S. 93, 98 (2005). Bloodworth, 2022 WL 17588490, at *8. The
warrant “referenced the entire property” and authorized a search for and seizure of
“[a]ny documents regarding the towing of verified stolen vehicles.”
(c) In Count V, Bloodworth alleges that Defendants Sicks and Truax violated
the Fourth Amendment when they shot and killed Bloodworth’s dog Rocky while
executing a warrant search of his residence. The district court recognized that “[a]
dog is considered property for Fourth Amendment purposes,” and killing a family pet
is a seizure. Andrews v. City of W. Branch, 454 F.3d 914, 918 (8th Cir. 2006). “[A]
police officer may justify shooting a dog in order to protect life and property only
when it presents an objectively legitimate and imminent threat to him or others.”
LeMay v. Mays, 18 F.4th 283, 287 (8th Cir. 2021). The district court noted that
-14-
“Sicks and Truax were tasked with covering Munyan and Miller, who were focused
on clearing a room.” Bloodworth, 2022 WL 17588490, at *9. The dog “exhibited
some signs of aggression,” moved toward the officers, and paused, “then began to
move forward and was immediately shot.” Id. The court concluded that “Plaintiff
has not demonstrated Sicks and Truax violated his Fourth Amendment rights by
engaging in an unreasonable seizure through killing Rocky.” Id. The court found the
cases on which Bloodworth relied to support this claim “readily distinguishable.” Id.We agree that dogs are considered “effects” within the meaning of the Fourth
Amendment, and therefore shooting a dog is a seizure that must be objectively
reasonable or it violates the owner’s Fourth Amendment property interest. Hansen
v. Black, 872 F.3d 554, 558 (8th Cir. 2017), cert. denied 138 S. Ct. 2010 (2018). This
inquiry “turns on the facts and circumstances of each particular case,” viewed from
“the perspective of a reasonable officer on the scene.” Id. at 558 (quotation omitted).
We also agree that the cases on which Bloodworth relies, primarily Andrews and
LeMay, are distinguishable.
In Andrews, a police officer looking for a loose dog running in the
neighborhood shot another dog that was inside a fenced yard showing no signs of
aggression, with his owner just a few feet away. 454 F.3d at 916. Our divided panel
reversed the grant of summary judgment for the officer. Id. at 918-19. In LeMay, an
officer responding to a home security alarm jumped over a fence, walked into the
back yard, and shot two service dogs that approached the officer, one “in a friendly
manner,” the other “in a non-threatening manner.” 18 F.4th at 286. We affirmed the
district court’s denial of defendant’s motion to dismiss. Id. at 288.
By contrast, in Buschmann v. Kansas City Board of Police Commissioners,
officers responding to a domestic violence call walked through a dark wooded area
and drew their weapons as they approached plaintiffs’ house. 76 F.4th 1081, 1083-84
(8th Cir. 2023). When they knocked on the door, they heard barking and growling.
-15-
When the door opened, a dog ran directly at one officer, who shot it, then shot it again
when it turned toward the other officer. Id. Noting the officer faced a “split-second
decision,” and distinguishing Andrews and LeMay, we affirmed the grant of qualified
immunity because it was reasonable to believe that an uncontrolled dog barking and
growling and advancing toward the officers was “an imminent threat.” Id. at 1085;
accord Bailey v. Schmidt, 239 F. App’x 306, 308 (8th Cir. 2007) (“defendants did not
act unreasonably . . . given the uncontested evidence that all of the dogs either
advanced or acted aggressively toward the officers.”).
Here, Officers Sicks and Truax encountered Bloodworth’s large pitbull mix
dog after they lawfully entered the residence not knowing who might be present.
Officers Munyan and Miller were clearing a room while Sicks and Truax covered
them. The dog’s owner was not present to control the animal. The uncontrolled dog
came out of another room and approached the officers, barking and not showing signs
of friendliness. The dog was within six feet of Munyan and Miller when Sicks yelled
“back.” When the dog instead moved forward, both Sicks and Truax fired their
weapons. Defendant Truax testified that he believed the dog was a danger to his
colleagues and that it was “blocking our avenue to get safely to the other side of the
house to clear the rest of the residence.”
In these circumstances, a reasonable officer could conclude that the dog posed
an imminent danger to Officers Munyan and Miller. The size and breed of an
uncontrolled dog that advances aggressively on officers performing police duties are
clearly relevant to the objective reasonableness of their split-second decision to
forcefully seize the animal. See Kendall v. Olsen, 727 F. App’x 970, 974-75 (10th
Cir. 2018); Lee v. Town of Fort Mill, 725 F. App’x 214, 218-19 (4th Cir. 2018);
Altman v. City of High Point, 330 F.3d 194, 206-07 (4th Cir. 2003).
(d) Bloodworth claims that the tow lot search violated his Fourth Amendment
property rights when business records outside the scope of the warrant were seized.
-16-
Defendants denied having possession of the seized documents. Major Caron testified
that City Codes employees accompanying the KCPD officers examined and took
business documents from the residence. The district court rejected this claim
“[b]ecause Plaintiff has not linked the potential constitutional violation to the named
defendants.” As explained, we uphold that ruling. Bloodworth argues that City
Codes personnel “had no authority to be there” and letting them take records not
reflected on the inventory of seized items “was a violation of his clearly established
property interest in those records.” We agree with the district court that “none of this
conduct is directly attributed to the Officers.” Defendants cannot be liable under
§ 1983 for seizures by other personnel.
3. Alleged Intentional Acts Fourth Amendment Violations (Count XVII).
Bloodworth alleged in Count XVII that Defendants violated the Fourth Amendment
by maliciously acting together, without justification, to render him unable to conduct
his businesses. The Non-Lemon Officer Defendants did not reference this claim in
their motion to dismiss. The district court concluded it “essentially repackages other
theories and largely relies on the same purported misconduct” and dismissed it
because it fails for the same reasons. Bloodworth, 2022 WL 17588490, at *10 n.12.
On appeal, without citation to any authority, Bloodworth argues “[t]his was surely an
abuse of discretion.” We disagree. There was no error.4
Sergeant Lemon did expressly include Count XVII in his motion to dismiss,
arguing Bloodworth adduced no evidence that he took any action in an official
capacity or engaged in unconstitutional conduct. The district court agreed there is no
evidence “Lemon was involved in the investigation and charging of Plaintiff” with
4
Bloodworth does not challenge the district court’s dismissal of Count XVII
on the merits, so any objection is waived. See XO Missouri, Inc. v. City of Maryland
Heights, 362 F.3d 1023, 1025 (8th Cir. 2004); Mahler v. First Dakota Title Ltd.
P’ship, 931 F.3d 799, 807 (8th Cir. 2019).
-17-
the forgery charges that were ultimately dismissed. Bloodworth, 2022 WL 17588490,
at *11. On appeal, Bloodworth argues that, based on Lemon’s threat of an
investigation in the phone call and the fact charges were later filed, “a jury could infer
that Mr. Lemon . . . was involved in the persecution of Mr. Bloodworth.” We agree
with the district court that the investigation and filing of forgery charges against
Bloodworth did not violate his Fourth Amendment rights. Bloodworth fails to
respond to the district court’s conclusion that Lemon’s inappropriate phone call,
without more, is insufficient to establish that Lemon was involved in the investigation
and charging. There was no error.
B. Failure to Intervene or Supervise Claims (Counts VII, VIII, and IX).
Bloodworth argues the district court erred in dismissing his failure to intervene and
failure to supervise claims against Defendants Sicks, Caron, and Millsap.5 To prevail
on a claim of failure to intervene and failure to supervise, Bloodworth must prove an
underlying constitutional violation. See Zubrod v. Hoch, 907 F.3d 568, 580 (8th Cir.
2018) (failure to intervene); Malone v. Hinman, 847 F.3d 949, 955-56 (8th Cir.)
(failure to supervise), cert. denied 583 U.S. 870 (2017). Because we have upheld the
district court’s grant of summary judgment dismissing Bloodworth’s claims of
constitutional violations by KCPD officers, there can be no § 1983 supervisor
liability. See Sanders v. City of Minneapolis, 474 F.3d 523, 527 (8th Cir. 2007).
C. Monell Claims (Counts X, XI, XII, and XIV). Municipalities may be
held liable under § 1983 when a constitutional violation results from an official
custom or policy of the municipality. Monell v. N.Y.C. Dep’t of Soc. Servs., 436
U.S. 658 (1978). Bloodworth asserted four Monell claims against the Board and its
Members, arguing that the Board’s (1) official policy; (2) unlawful practice or
5
“We have held there is no clearly established law regarding a duty to intervene
outside of the excessive force context.” Andrews v. Schafer, 888 F.3d 981, 984 n.4
(8th Cir. 2018) (citation omitted).
-18-
custom; (3) failure to properly train officers; and (4) failure to properly retain,
supervise or discipline officers led to constitutional violations. The district court
granted summary judgment dismissing these claims because “Plaintiff has either
failed to (1) develop his claims, (2) establish individual liability because conduct was
constitutional, or (3) demonstrate the Board has authority over the entities, such as
City Codes, allegedly engaging in unconstitutional conduct.” Bloodworth, 2022 WL
17588490, at *10. We agree.
On appeal, Bloodworth first argues the district court erred because Defendants
did not move for summary judgment on these claims. Our review of the record
persuades us that Defendants did move for summary judgment on these Counts. It
appears that Bloodworth misinterprets footnote 12 in the district court order as
applying to these Counts, rather than to Count XVII. But the record is confusing.
On the merits, these claims clearly fail because, as we have explained,
Bloodworth failed to establish a constitutional violation resulting from official policy,
unlawful practice or custom, or failure to properly train, retain, supervise, or
discipline KCPD officers. “Because there is no cognizable constitutional violation,
there is no basis for Monell liability.” Brabit as Tr. for Bild v. Capra, 59 F.4th 349,
354 (8th Cir. 2023).
For the foregoing reasons, the judgment of the district court is affirmed.
______________________________
-19-